R. v. Lee Kin Fai and Another

CACC000500/1992

IN THE COURT OF APPEAL

1992, No. 500
(Criminal)

___________

___________

Coram: Hon. Penlington, J.A., Bewley & Sears, JJ.

Date of hearing: 24 November 1993

Date of delivery of judgment: 24 November 1993

________________

J U D G M E N T

________________

Penlington J.A.:

1. These are applications for leave to appeal against conviction, in the case of the second applicant (D2) out of time. The first applicant (D1) has abandoned his application to appeal against sentence. D2 seeks leave also to appeal against sentence out of time.

2. The brief facts of the matter were that on the 10th of March 1992, sadly a considerable time ago, there was a traffic accident on the Sha Tau Kok Road near Fanling in which a lorry driven by D2 passed a stationery public light bus safely. A second lorry following him and driven by D1 also tried to pass the bus, failed to do so and collided with an oncoming vehicle. D1 and the driver of the other vehicle were injured and were taken to hospital.

3. Police officers arrived on the scene very shortly after the accident and found that there were four men emerging from the back of the lorry which had been driven by D1 and it is not in dispute that these four men were illegal immigrants. The sole issue then was whether each of the applicants knew that the illegal immigrants were in the back of the lorry and, in the case of D2, whether he was involved in the transport of the illegal immigrants. D1 gave evidence which was not contradicted that he had been employed by D2 to drive the lorry on his behalf.

4. D1 was interviewed in hospital and he made a statement under caution in which he said that he was the driver of the damaged lorry but that he had not seen any illegal immigrant in it before he took to the road. The goods compartment in the lorry was unlocked but closed and he thought that the lorry was empty. He said on the day in question he had had lunch with his girl friend, Miss Wong Siu Yung, and during lunch D2 paged him and asked him to drive the lorry. The statement goes on for some six pages but it was exculpatory. D1 was however taken into custody, detained overnight and on the following day he made a further statement to the same police constable which was a confession that he did indeed know that there were illegal immigrants in the lorry that he was driving. The first statement was produced unchallenged but the second one was the subject of a voir dire inquiry as to whether it was voluntary, the case for D1 being that it was the result of an inducement - that if he confessed neither his girl friend or a younger brother would be involved. It is the main ground of appeal by Mrs. Robertson, who appears for him here but not below, that there is no satisfactory explanation as why D1 should change his story. He had given evidence that he was in pain when he made the confession, that he had been denied medication and the judge has not resolved the issue as to the change of heart of the applicant. He has simply said he accepted the evidence of the police officers concerned in the taking of the statement but rejected that of D1.

5. We do not consider this ground has been made out. The judge has set out fully the background relating to the statement taken in hospital and the evidence given as to the way in which the second statement was recorded. It seems clear from that statement that D1 was indeed anxious that his girl friend should not be involved but clearly police inquiries following D1's first statement had indicated it was not accurate and the police were entitled, under caution, to inquire further. The sole issue was whether in pursuing such inquiries with D1, the police officers offered him the inducement, as he alleged, that, if he confessed, his girl-friend and brother would not be charged. The judge, having heard and assessed the witnesses, has come to the firm conclusion that the police officers were truthful in that no such inducement was offered and disbelieved D1's- evidence that it was. That was a pure decision of fact based on credibility with which we see no reason to interfere.

6. The judge did go on to say that the D1's confession statement "completely contradicted" his evidence given on the general issue and Mrs. Robertson submits that was clearly not correct as the statement and the evidence as to events are not greatly dissimilar, apart of course from the vital issue of D1's knowledge, or lack of it, as to the presence of illegal immigrants in his lorry.

7. Mr. Bruce for the Crown has fairly conceded that it was not entirely accurate to say that D1's evidence in the general issue was in complete contradiction to the statement which had been admitted but in respect of the central issue as to whether D1 knew that there were illegal immigrants in the back of his lorry, it is such a contradiction. We are satisfied that that is what the judge meant in expressing himself in the way he did.

8. The application of D1 for leave to appeal against conviction is refused.

9. D2's application is out of time. He has given an explanation of that and although not very satisfactory we give him leave to appeal against conviction out of time.

10. The case against D2 was that after the accident to the lorry which was driven by D1 he drove away but he was arrested on the 12th March two day later. He was interviewed and made a statement admitting that he asked D1 to transport illegal immigrants in his (D2's) lorry. However he put the main blame on a man called "Ah Kau" who recruited him to drive them from the Sha Tau Kok public carpark.

11. D2's written ground of appeal is that there was no consent from the Governor for his prosecution. He seems to be confusing his case with that of persons arrested at sea with illegal immigrants on board vessels. The shore answer to that ground is that the consent of the Governor is not required for this offence. The consent of the Attorney General is required and is normally given at the beginning of the proceedings in the Magistracy. There was no point taken the trial judge by counsel for D2 that there was no such consent and we are satisfied that point cannot be taken now. We are however assured that the consent of the Attorney General was given.

12. D2 today says his statement, which was the sole evidence against him, was obtained by means of violence. That was a matter which was fully inquired into by the judge. He came to the conclusion that the statement was voluntary and again we are satisfied that that was a conclusion he was entitled to come to. D2's statement was a full confession to the offence and his application for leave to appeal against conviction is also refused.

13. D2 seeks leave to appeal against sentence out of time. He was sentenced to 3 1/2 years' imprisonment whereas D1 received 3 years. The judge said that while there was little between them as to criminality D2 seemed to be further up the scale as he owned D1's lorry and recruited him to transport the illegal immigrants. D1 was initially reluctant to do so and his sentence was reduced to reflect that.

14. We feel that there is no real difference in blameworthiness between D1 and D2 and we allow D2's application to leave to appeal against sentence, treat the application as the hearing of the appeal which is allowed to the extent that his sentence is reduced to one of 3 years' imprisonment.

Representation:

Mrs. E. Robertson (So & Co.) for Applicant (D1)

Mr Shum Wai-sun, applicant - in person

Mr. A.A. Bruce, SACP for Crown